Folkways (Sociology)

• Sources of Law is the topic of Unit 2.

Folkways (Sumner)

• William G. Sumner (1840-1910), an American sociologist, defined two types of norms in his 1906 book, Folkways: 'folkways' and 'mores.'
• Reuter and Hard (1933) define folkways as simple, common habits with some traditional approval.
• Maclver and Page (1949) : Folkways consist of accepted ways of behaving in society.
• Folkways resemble natural forces or animal instincts, developed through experience and handed down by tradition, which adapt to changing conditions without rational thought.
• Folkways are recognized ways of behaving that arise automatically in a group to address shared problems.
• Different societies develop their own workable folkway patterns.
• Through trial and error a group may adopt and repeat an action as the normal way of behaving.
• Folkways are passed down through generations, shaping group behavior.
• Folkways stem from inherited psycho-physical traits and instincts that help solve issues like food, sex, commerce, and vanity.
• Mass participation creates similarity, concurrence, and contribution producing folkways through the repetition of petty acts.

Characteristics of Folkways

• Folkways arise spontaneously from experience, unplanned and uncharted.
• Folkways consist of approved ways of behavior, recognized and followed by the group.
• Folkways vary among societies, becoming unique to specific groups.
• Folkways are passed down from one generation to the next.

Mores (Sumner)

• Mores are the strongest social norms, related to morality.
• Examples of Mores include not killing or committing adultery or homosexuality.
• Giddings and Halt (1906) describes Mores: A folkway violation is met with laughter, while a Mores violation is met with severe punishment.
• Mores are more important than Folkways and customs as their violations have serious consequences.
• A man consuming six meals per day is frowned upon while a public nudist is seen as a social pariah.
• W.G. Sumner (1906) believed folkways evolve into mores when philosophical and ethical considerations are added. Maclver and Page (1949) said: "When the folkways have added to them conceptions of group welfare, standards of right and wrong, they are converted into mores."
• Violations of mores inspire intense reactions and some type of punishment will occur.
• Punishments may include group expulsion, harsh imprisonment, or even death.

Customs

• Customs consist of habitual behaviors observed uniformly and voluntarily by the people. Considered a vital source of law in ancient societies.
• 'Custom' refers to tradition, practice, usage, observance, unwritten rules, convention, and habit.
• Customs involve ongoing behavior with community approval, establishing norms for behavior within society.
• Customs are long-established practices or unwritten rules with a binding character.
• Salmond described customs as principles of justice and public utility.
• Austin defines custom as a rule observed spontaneously by the governed, not set by a political superior.
• Holland defines custom as a generally observed course of conduct.

Folkway Versus Custom

• Customs are often referred to as folkways.
• Folkways are broader than customs, covering behavior not included in the term custom.
• Shaking hands or eating four meals are examples of folkways.
• Customs relate to survival and growth while folkways are not necessarily survival related.
• Customs are not obligatory by the group, unlike folkways.
• Customs are sanctioned informally.

Social Basis of Law (Savigny)

• Law develops first through custom and popular belief, then through judicial decisions via internal powers, not by the arbitrary will of a law-giver.
• F.K. von Savigny discusses the the social basis of law.
• Roman law, which was taught at universities and dominated German legal administration and adjudication, was condemned by nationalists as an "alien law."
• The ancient Roman legal system between the 5th century B.C. and the 6th century A.D. was replaced by a system of law indigenous to Germany.
• Law existed independent of the state.
• Savigny theorized law originated as a social phenomenon that developed from the people's Geist (national mind or spirit) to the legal specialists.

Religion and Morality

• Religion and law shape human consciousness and behavior in both private and public life.
• Religion is driven by faith in God or divine forces.
• Religion is a choice, while the law is mandatory and enforceable by the courts.
• It is argued that allowing religion to affect laws limits people's freedoms. Religious influence should remain separate from laws and politics.
• Laws against murder or thievery such as those found through religion address what is wrong.
• Religion should be a voluntary belief, not science and law.
• Religious communities are governed by personal laws. Personal laws exist for Hindus, Muslims, Christians, Zoroastrians, and Jews. Brahmoism is covered under the secular law of India. Buddhists, Jains and Sikhs are classified as Hindus for legal purposes.